Opinion
1:21-cv-1582 JLT HBK (HC)
10-07-2022
EDDIE NIETO, Petitioner, v. THERESA CISNEROS, Respondent.
ORDER ADOPTING THE FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT'S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
(DOCS. 20, 23)
The assigned magistrate judge issued Findings and Recommendations recommending that Respondent's Motion to Dismiss be granted, and the amended petition be dismissed as unexhausted. (Doc. 23.) The Findings and Recommendations were served on all parties, and it contained notice that any objections were to be filed within 14 days after service. In addition, the court advised the parties that “failure to file objections within the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Petitioner has not filed objections, and the time for doing so has passed.
According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case. Having carefully reviewed the entire matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-Elv. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. If a court denies a habeas petition on the merits, it may only issue a certificate of appealability “if jurists of reason could disagree with the district court's resolution of [the petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits, he must demonstrate “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.
The Court finds that reasonable jurists would not find the determination that the Petition should be denied debatable or wrong, or that the issues presented are deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability. Based upon the foregoing, the Court ORDERS:
1. The Findings and Recommendations issued on July 27, 2022 (Doc. 23), are ADOPTED in full.
2. Respondent's Motion to Dismiss (Doc. 20) is GRANTED.
3. The amended petition for writ of habeas corpus (Doc. 16) is DENIED.
4. The Court declines to issue a certificate of appealability.
5. The Clerk of the Court is directed to close the case.
IT IS SO ORDERED.